Opinion
No. 4859.
Argued November 2, 1960.
Decided November 30, 1960.
1. The evidence warranted the finding that a deed of real estate by a husband, without consideration, purporting to convey to his wife an interest as a joint tenant with himself was not delivered and that there was no intention of making a present gift to her and hence the wife had no interest therein subject to attachment by the town to secure a claim for support of her minor children by a previous marriage.
2. While delivery of a deed of real estate may be presumed from all the surrounding circumstances presumption of delivery may not be based solely on its recordation.
BILL IN EQUITY, seeking (1) to recover the cost of support furnished by the plaintiff town for the two minor children of defendant Marie L. Parsons by a former husband, pursuant to an order of the municipal court of Concord on October 21, 1957, adjudging them "neglected children" and placing them in the custody of the Department of Public Welfare (RSA 169:7) and (2) to set aside as a fraud upon creditors her deed dated December 4, 1958, purporting to convey to her present husband, defendant C. Parsons, her interest in certain land and buildings in Newbury. RSA 545:4; RSA 545:7.
The defendant Roy acquired the premises in question in 1945 and thereafter constructed cabins on the property. He married Marie May 14, 1948. She had no personal estate and contributed no money to improving the property.
Prior to the marriage Roy had mortgaged the premises on three occasions to the Loan Trust Savings Bank of Concord, which mortgages were subsequently discharged.
On February 14, 1949, he purported to convey the premises without consideration to Marie as joint tenant with the grantor. Thereafter on two occasions they joined in conveying the premises to the Loan Trust Savings Bank of Concord by mortgage deed.
On March 18, 1958 the town of Newbury commenced an action against Marie to recover for sums it had expended for supporting her two minor children and made a real estate attachment on any real property in which she had any right, title or estate.
The Court after hearing found a verdict in the sum of $834.89 against defendant Marie and dismissed the bill as to defendant Roy.
The plaintiff's bill of exceptions was allowed and transferred by Morris, J. Other pertinent facts appear in the opinion.
Upton, Sanders Upton (Mr. Gilbert Upton orally), for the plaintiff.
McLane, Carleton, Graf, Greene Brown (Mr. Brown orally), for the defendants.
The basic issue presented by the plaintiff's bill of exceptions is whether there was any reasonable evidence to sustain the Court's findings that the deed purporting to convey to Marie an interest as a joint tenant in the property was not delivered and that there was no intention of making a present gift to her and she therefore acquired no present interest in the property which the plaintiff could reach by real estate attachment to secure its claim for support furnished to Marie's two minor children. It is not contended here that Roy was at any time a person legally responsible for the support of Marie's children.
The question of whether a deed is delivered is generally one of fact (Hurlburt v. Wheeler, 40 N.H. 73) to be ascertained from the intent of the parties at the time of execution. Thus in order to effectively transfer property to another there must be an intention on the part of the grantor to convey together with delivery of the deed and acceptance by the grantee. Cook v. Lee, 72 N.H. 569.
Marie was admittedly an emotionally unstable person who experienced mental upsets whenever pregnant and had on two occasions been treated at the State Hospital. It was findable that in February, 1949, she was in the eighth month of pregnancy and became depressed about her economic situation in the belief that if Roy should die she would have no interest in his property. In order to allay her fears he agreed to put his property in their joint names. His intentions as to her present interest is described in his testimony on cross-examination: "Q. Didn't you intend to have her have it? A. If I died, yes. I put it in her name to give her security . . . Q. You wanted it put in the joint names so that she would have an interest in the property in case you died? A. That is correct . . . I felt if I died I didn't want her to have to go through the courts to have a home." Marie testified that "I felt it would be nice if anything happened to him to know that I would have the property."
Roy went to the bank where an officer prepared a joint tenancy deed which he executed. It was recorded by the bank and thereafter placed with Roy's other papers at the bank. Marie never saw the deed and gave no consideration for it.
The question presented here is whether the grantor continued to have the right "to control destination of the deed" and recall it if he desired. If such control was retained by the grantor there was no delivery. Amazeen v. Newcastle, 76 N.H. 250, 253; Cook v. Brown, 34 N.H. 460; Hayes v. Davis, 18 N.H. 600; Cf. Boody v. Davis, 20 N.H. 140. In the absence of other evidence delivery may not be presumed because it was recorded. Cram v. Ingalls, 18 N.H. 613. Although actual manual delivery is not established, delivery may be inferred from all the surrounding circumstances such as signing, attestation, acknowledgment and recording but this evidence is prima facie only and not conclusive. Wells v. Iron Co., 48 N.H. 491, 537.
The Trial Court found that the bank retained the deed with Roy's papers and that Marie acquired no interest by virtue of the undelivered deed. Marie's testimony indicated that her whole desire was to have security in the event Roy predeceased her. On her husband's part his only wish was to placate her upset mental condition and effect title in the property in Marie at his decease.
We think that the evidence warranted these findings which supported the decree of the Court. Since Marie acquired no interest in the property she had nothing to reconvey to Roy by her deed of December 4, 1958, and it follows the plaintiff secured no lien on the property by its real estate attachment.
In view of the result reached here, it is unnecessary to consider plaintiff's other specific exceptions.
Exceptions overruled.
All concurred.